Free Software Matters:
Free Software and the Broadcast Media

Just as free software has been a particularly scary subject
for the music and film industries in the past several years,
threatening their control over their content, it is about to become
excessively frightening to their television and radio lordships as
well.

Here in the United States we are awaiting rulemaking by the Federal
Communications Commission concerning the possibility of copy
protection for digital television content. In 1996, Congress
legislated a ten-year plan for the conversion of the US broadcasting
system to a digital TV standard. Every owner of an existing analog TV
station was given, at no cost, an additional place on the spectrum for
a second, digital broadcast operation. When, in 2006, every station
in the US is supposed to be fully operational in digital broadcast,
the operators are supposed to return to the public their original
analog television spectrum locations.

But, although many broadcasters have made the expensive investments in
the digital broadcast chain, from the cameras through the studio
equipment to the transmitters, Americans have shown a predictable
unwillingness to replace all their inexpensive TV sets with new
digital sets that cost on the average ten times as much. Their
reluctance has been understandable in part because Hollywood has not
made available all the supposedly smashing dramatic and sexy content
that was supposed to make watching digital television such a wonderful
experience.

As usual, the reason has been concern from the content moguls that
their digital content would leak out into the world in the form of
perfect copies for peer-to-peer sharing. A long round of
inter-industry negotiations last year concluded with a proposal for a
``broadcast flag'' in digital content, which all hardware that handles
digital video is supposed to recognize, and treat as an instruction
not to permit copying of the attached content.

Having reached this supposedly ``consensus'' result (largely by
ignoring the objections of consumers, librarians, and other
representatives of the users of video content and the general public),
the content industries and the broadcasters have lobbied the Federal
Communications Commission to make administrative rules requiring
manufacturers of consumer TV equipment (which in this context means
everything from digital tuners, digital video recorders, and even
digital television displays themselves) to treat as uncopyable all
data streams with the ``broadcast flag'' turned on.

Enter, as so often, free software. After all, digital TV is just a
bitstream that a general purpose computer equipped with an antenna can
take out of the air and decode. One can write for oneself a program
that will perform that task, and which will do so without paying any
special attention to the ``broadcast flag.'' Such a program is GNU
Radio, a development project of the Free Software Foundation. GNU
Radio can already receive and decode US-standard digital television
signals. Thus, as the FCC considers the order for special-interest
regulation handed to it by the Masters of MegaMedia, GNU Radio is
going to cause quite a headache. The FCC is accustomed to telling the
manufacturers of TV sets how they should work, but whether it has the
authority (or the imprudence) to attempt to control software running
on ordinary personal computers is entirely uncertain. If the FCC
attempts to implement broadcast copy protection, in other words, it
will have to attempt to control the free software movement. If it
does not risk an extension of its authority into the domain of
ordinary software, the ``broadcast flag'' favor it is being asked to
do for Hollywood will be worthless.

So my colleagues and I are currently urging the FCC to reconsider the
``broadcast flag'' proposal. If they don't, the stage is set for a
confrontation between the free software movement and the media
industries over GNU Radio, and the idea of ``software-controlled
radio'' overall. That confrontation would test the power of the FCC
to make rules governing ordinary computer software, and would raise
very substantial freedom of speech issues, because the Commission
would be trying to limit the distribution of general technical
information. The next few months will tell whether the FCC is
prepared to take on that challenge. The Free Software Foundation and
the developers of GNU Radio certainly stand ready to challenge any
regulation that prohibits the distribution of our software. And, as I
shall explain in my next column, the confrontation could result in a
profound shock to the very system of broadcasting itself.

*Eben Moglen is professor of law
at Columbia University Law School. He serves without fee as
General Counsel of the Free Software Foundation. You can read
more of his writing at moglen.law.columbia.edu.